Lawsuit for alleged breach of contract adds to string of town legal cases

By Amelia Pak-Harvey, apak-harvey@nashobapub.com

Posted:
03/12/2014 09:47:17 AM EDT

AYER -- In the latest of its legal battles, the town is caught in an alleged breach of contract that could end up costing the town a sum in the hundreds of thousands of dollars.

The town's deputy tax collector is alleging that the town breached its contract by terminating employment without the proper 30-day notice, according to a court document obtained from Town Administrator Robert Pontbriand.

K. Bolduc Enterprises, the plaintiff, was hired by the town to collect fees from motor-vehicle excise taxes and parking violations.

According to the contract attached to the complaint, the town was obligated to give a 30-day notice of termination. The notice would allow KBE to fix any problems that might have led to the end of the contract.

KBE claims that Ayer also breached its contract by failing to specify KBE's alleged default and failing to provide the termination in writing.

Pontbriand said that Town Clerk and Tax Collector John Canney has the right to appoint the town's deputy collector under state statute, and made a decision to go with a new firm in December 2013.

The complaint states that the town notified KBE of its termination only five days before, with the argument that a competitor could provide better services.

Yet Pontbriand said that Canney has consistently maintained that there is no contract between K. Bolduc Enterprises and the town of Ayer.

Pontbriand said that in January, he was copied on a letter from KBE's lawyer to the tax collector that cited the breach of contract.

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"Prior to the summons even being filed on February 12, 2014, before this was even an official lawsuit, the tax collector on numerous occasions has maintained that there is no contract," he said.

KBE attorney Mark Engel said that the contract attached to the complaint has a signature of John C. Canney II.

"If what they're saying is that it's a forgery, I guess they'd have to allege that and prove that," Engel said, adding that right now he does not have any knowledge of any of the town's possible denials.

As of mid-Tuesday, representatives from both parties had not been in direct contact but had a round of phone tag, Engel said. Although the town is past its 20-day deadline to respond to the summons, Engel said he is sure the town will provide answers to the complaint.

Pontbriand presented this latest development to the Finance Committee, saying that it could cost up to six figures to settle. The selectmen met in closed executive session on Tuesday, March 4, to discuss litigation strategy.

Asked for comment, Canney referred all questions to Pontbriand.

Despite this new legal matter, Pontbriand is sticking with his original proposed town counsel budget of $85,000 -- a $7,000 increase from last year. The increase is due, in part, to:

* The town has a lawsuit against Hugh Ernisse, who owns two properties in town, on Washington Street and Williams Street, over alleged violations of state sanitary code and town bylaws. The town claims that Ernisse has not kept either property "free from garbage, rubbish and debris" and has violated the Ayer nuisance bylaw by allowing "an excessive amount of junk to accumulate," according to court documents. Ernisse has failed to follow orders from the town's building commissioner and board of health agent to clean up his property, according to the documents.

Ernisse claims that he has been cleaning up his land, spending about $5,000 in the past year to work on improving both properties. He said he will continue to clean up to resolve the issue.

"Anything that I've got to do with my two homes here in town will be accomplished in the summertime," he said. "There won't be any complaints."

"They won't have to spend any more court cases for me than they already have," he added.

Although he said the issue will be resolved "quickly and amicably," he noted that the Board of Selectmen is overextending its authority by telling people what can be done on their own properties.

"They're taking the wrong approach," he said. "I have done what needed to be done and I will continue to do the things that need to be done from the point of view of a very fair citizen."

* The town has a lawsuit against Mark Velardi over issues with his property at 71 Sandy Pond Road, according to a document obtained from Pontbriand. The town alleges that Velardi does not have the proper building permit for a metal storage container that should have a permit because of its size.

The town also claims that Velardi is operating a trucking business from his home property, which requires a special permit. Velardi is allegedly breaking the nuisance bylaw with the "excessive amounts of rubbish, junk and debris" on his property, according to the document. The town claims he has not responded to any of its orders to either apply for a building permit or remove the metal storage building, clean up his property and cease the alleged business taking place from his home.

When reached, Velardi refused public comment.

* The budget increase will fund legal help needed to pursue town acceptance of new roads. Voters decide whether to formally accept certain roads throughout town at the annual town meeting. A town's acceptance of roads allows the public works department to apply for state funding for certain road maintenance projects.

Other legal issues may not account for the suggested increase, but are still a part of the town's legal bills. The town is being sued by its treasurer, Stephanie Gintner, in a lawsuit that has cost about $18,920 from September 2011 to November 2013. The issue began in 2011, when Assistant Treasurer Melissa Doig claimed that Gintner accessed her email account while she was away on vacation and deleted 15 emails. Nashoba Publishing reported in 2012 that Gintner asked for access to Doig's email account because she said it could contain evidence that would clear her of the accusation. When the town refused, the state's supervisor of records ordered the town to provide access. Although Gintner has received hard copies, she wants the electronic copies of the emails. Gintner said the electronic versions have all the material in the emails, while the hard copies have redacted information.

"I don't believe that they have given me everything," she said.

Pontbriand said that the town has provided all of the records, and to argue that it has not is preposterous. He also cited security concerns that could arise from giving mainframe access to anyone who is not directly affiliated with the town.

But Gintner is arguing that such documents are public record.

"It's part of the public records law that you can get the electronic versions, and they're not allowing that," she said.

Gintner added that the whole $18,920 figure is not solely due to the lawsuit, but also many executive sessions dealing with the issue. The first complaint alone had seven executive sessions, she said.

The fiscal 2015 budget might also be impacted by an unresolved contract with police superiors, or sergeants. Pontbriand said that employment contract negotiations have not been concluded, and sometimes if they are not resolved before July 1, the legal costs can go into the next fiscal year.

The local chapter of a firefighter's union has filed an unfair labor practice with the state's Joint Labor Relations Council against the town. Pontbriand said the town will work with the JLRC to reach a resolution for a new employment contract. Such negotiations could also flow into the legal costs of the next fiscal year.

The town's legal budget is running about two percent over as of December 2013, Pontbriand explained to FinCom two weeks ago.

Ayer is proposing the third-highest town counsel budget for fiscal 2015 out of seven nearby towns, according to the document Pontbriand distributed to FinCom. Only Groton and Lunenburg have higher proposals of $90,000 and $125,000, respectively, for legal costs.

Selectmen have requested a review of current rates from town counsel, the law firm Kopelman and Paige, with a request to discuss reducing some rates, according to the document Pontbriand handed to FinCom.

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